Saturday, April 16, 2005

Circuit Again Vacates an Erroneous Enhancement without Conducting Reasonableness Review

United States v. Capanelli, Docket Nos. 03-1376 & 03-1439 (2d Cir. April 14, 2005) (Oakes, Jacobs & Cabranes) (Op. by Jacobs): In this opinion, the Circuit -- as it did recently in United States v. Rubenstein, No. 03-1721 (see Blog, below) -- vacates an erroneously imposed 5-level Guidelines enhancement; exercises its discretion to correct the error and remand for resentencing without conducting Booker's reasonableness review; and leaves open (again) the question of whether a sentence imposed pursuant to an erroneously calculated Guideline range could nonetheless be reasonable. Thus, the Big Question posed by Rubenstein -- whether a sentence imposed upon an erroneously calculated Guidelines range could nonetheless be upheld on appeal as reasonable (and, conversely, whether a sentence imposed pursuant to a correctly calculated range could nonetheless be vacated on appeal as unreasonable) -- remains unanswered.

Defendant was convicted after trial of conspiring to rob a federal credit union, a conspiracy that was foiled long before the actual robbery was to have occurred. The main question on appeal was whether a 5-level enhancement for possessing or brandishing a firearm during a robbery was applicable. Although no actual firearm was used (since the robbery never occurred), the district court imposed the enhancement on the theory that it was "reasonably foreseeable" to the defendant that a firearm would be used by one of the conspirators in furtherance of the robbery. See U.S.S.G. § 1B1.3(a)(1)(B).

The Circuit concluded that this was the wrong legal standard where the conduct supporting the enhancement did not actually occur. Relying on § 2X1.1's specific language (that in a conspiracy offense, a court should include "any adjustments . . . for any intended conduct that can be established with reasonable certainty") and the application note explaining this language (A.N. 2 to 2X1.1: "The only specific offense characteristics ... that apply are those that are determined to have been specifically intended or actually occurred"), Judge Jacobs ruled that the 5-level enhancement is applicable only "where it can be established with reasonable certainty that the conspirators specifically intended that a firearm be brandished or possessed, although it is unnecessary that any brandishing or possessing actually occurred." Op. at 8 (emphases in original). The language in 1B1.3 relied upon by the district court -- that a conspirator is liable for all "reasonably forseeable" acts "that occurred" in furtherance of the conspiracy by a co-conspirator -- was not relevant here, the Court explained, because no firearm was actually possessed or brandished. And although the facts in this case may well have supported an enhancement even under the correct standard (i.e., that there was a "reasonable certainty" that the conspirators specifically intended to possess or brandish a firearm during the contemplated robbery), the Court remanded to allow the district court to determine in the first instance whether the enhancement is appropriate under the correct legal standard. Op. at 11-12.

And, as noted already, the Court cautioned that its decision in this case to correct the error & remand for resentencing without conducting reasonableness review does not foreclose the possibility that a sentence resulting from an incorrectly calculated range can nonetheless be upheld as reasonable under Booker. Op. at 12. It simply notes that because "the influence of this error is likely to be so pronounced that it could cause resentencing after a remand to be unreasonable," citing Rubenstein, it would remand for imposing of a new sentence under a correctly calculated Guidelines range. Id.


Anonymous Anonymous said...

14 February 2005

United States Court of Appeals
Judicial Council of the Second Circuit
Thurgood Marshall US Courthouse
40 Foley Square
New York, New York 10007

RE: Resubmission of Complaint of Misconduct
Judicial Council of the Second Circuit
Case: Hall v. The New York Presbyterian Hospital, et al
USSD 00 CIV.7858

Dear Clerk:

As a practicing physician, born and trained in the United States of America, and board certified by the American Board of Family Medicine, I am held accountable for my professional actions. As a representative of my chosen profession, I am not only responsible to the patients I treat, but I am expected to adhere to an ideal, one that is called the Hippocratic Oath to ensure my patients receive the best care I possibly can deliver. It is understood that the same ethical and expert standards that apply to the medical profession also apply to the legal profession as well. Therefore, it is only natural that the following complaint be viewed only from the perspective of governance of the federal judiciary and management of federal law.

It is my firm belief that the Honorable Judge George Daniels, civil servant of the United States, agent of the United States federal judiciary, and lifetime member of the United States Southern District Court has violated his professional duties and must be held accountable to the American public. It is the belief of many that he has acted inappropriately and incompetently while presiding over Hall v. The New York Presbyterian Hospital, et al as he has treated these claims with extreme carelessness and negligence amounting to “judicial malpractice”.

It is inconceivable that a federal judge can ignore the official overtures of representing counsel. This has occurred in my case. It is morally unjust to require the filing of a lawsuit to force a ruling by a judge. This has occurred in my case. As well, one cannot comprehend how the federal court system can allow a member the federal judiciary to professionally lapse and allow an American citizen to be placed in an unacceptable and indeterminate state. This has occurred in my case. Moreover, it is unconscionable that this agent of the American government has not been held accountable for his actions. Honorable Judge George Daniels’ behavior is not only unacceptable, but also reprehensible. It must be documented that my civil rights as an American citizen were carelessly abandoned not only by my previous employer, but also by the very federal legal system designed to fairly resolve such disputes. Clearly, my constitutional entitlement to a fair judicial examination was abandoned. This District Court and Honorable Judge George Daniels’ actions have cast a great shadow on the American legal system and triggered a great number of personal, psychological and financial traumas. The Judicial Council of the Second Circuit must address these issues.

Please allow me to indulge the Judicial Council of the Second Circuit for a moment and provide some background for my complaint.

During the summer of 1997, while serving as chief ophthalmic resident and a graduate medical education member at The New York Presbyterian Hospital (“Hospital”), Petitioner witnessed several acts of racial prejudice and medical misconduct committed by senior medical staff against black Americans.

Within days, after verbally informing Petitioner’s chief-of-service, Dr. D. Jackson Coleman, MD, and program director, Kip Dolphin, MD, that an outer-borough black child did not receive timely and compassionate treatment from hospital surgeons for a traumatic penetrating eye injury, Petitioner was presented a fait accompli and asked to resign or face termination. Petitioner had previous been warned that previous comments regarding racial discrimination and medical negligence were not acceptable, and there was displeasure within the hospital staff regarding a written memo, in which Petitioner detailed why black patients did not receive adequate medical care at the hands of white hospital medical staff.

1) On October 17, 1997, unwilling to resign, Petitioner was summarily terminated from Accreditation Council for Graduate Medical Education (“ACGME”) approved ophthalmology residency position.

2) During April 1998 Petitioner brought forward a breach of contract complaint with the New York State Supreme Court based on a contractual obligation the Hospital had failed to obey by disregarding important employment bylaws while terminating Petitioner’s employment and disregarding a contractual obligation to provide adequate staffing and medical training based on ACGME approved guidelines.

3) On June 21, 1999, Judge Sheila Abdus-Salaam of the New York State Supreme Court dismissed the claims based a failure to go before the New York State Public Health Council (“PHC”). A state review board comprised of twelve (12) lay and professional New York State residents enacted by New York Public Health Law 2801-b. (NY Sup. Ct. docket no. 6020395/98)

4) After discussions with numerous attorneys, Petitioner was advised that as a member of the Hospital’s “graduate medical education”, or effectively a “medical student”, Petitioner would receive no resolution, as the PHC was purely designed to hear disputes between “credentialed hospital staff members” and hospital administration. Furthermore, the PHC was unable to offer any administrative remedy.

4) On October 14, 1999 Petitioner submitted an Emergency Medical Treatment and Active Labor Act claim ("EMTALA"), regarding two points, a) maintenance of physician-on-call lists and information on physicians who refuse or fail to appear to provide timely stabilizing treatment and b) protection for "whistle-blowers" who report a violation of the regulations, as well as a 42 U.S.C. § 1981 claim.

5) After initial arguments, a full disclosure revealed that District Court Judge Jed Rakoff had a conflict of interest with the case, as this was officially entered as part of the court record. At the time, the judge was affiliated with Cornell University; Petitioner’s attorney, Ambrose Wotorson, requested that he recuse himself and appoint a new judge, the judge refused.

6) On February 24, 2000, the District Court dismissed, without prejudice, the EMTALA claim for failure to proceed before the PHC. A copy of the opinion is attached as Exhibit A.

7) a) In July 2000, Petitioner provided a written complaint to the PHC and the Hospital provided a response. A copy of the complaint is attached as Exhibit B.
b) Additionally, in July 2000, Petitioner also communicated the same claim to the New York office of the Equal Employment and Opportunity Commission (“EEOC”) and the Department of Health and Human Services, Office of for Civil Rights. A copy of the letters is attached as Exhibit C.

8) On September 22, 2000, Petitioner was provided a full crediting and affirmation of civil rights violations claims by the PHC. A copy of the opinion is attached as Exhibit D.

9) On October 16, 2000, Petitioner attorney filed a suit against defendants alleging violations of 42 U. S. C. § 1981 and various state and local laws. Abruptly, the District Court Judge Jed Rakoff inexplicably recused himself from the case and appointed District Court Judge George Daniels.

10) Between November and December 2000, the Hospital provided false and malicious information regarding medical qualifications and skills to a prospective employer, in total contradiction to the findings of the PHC.

11) On December 13, 2000, the Hospital filed a 12(b)(6) Motion seeking to dismiss the complaint for failure to plead a prima facie case of discrimination and retaliation.

12) On April 6, 2001 Petitioner submitted a formal request to amend the complaint after receipt of a right-to-sue letter from EEOC. In January 2001 the EEOC provided Petitioner with a right-to-sue letter under Title VII civil rights law. A copy of the letter is attached as Exhibit E.

13) On July 4, 2001 Petitioner submitted a formal complaint of misconduct to the Judicial Council of the Second Circuit regarding the aberrant actions of Judge Jed Rakoff. (Docket no. 01-8568)

14) On November 18, 2003, a writ of mandamus was served by Petitioner’s attorney to the Second Circuit Appeals Court causing the District Court, by judgment dated December 5, 2003, to dismiss Petitioner’s claim under 42 U. S. C. § 1981 for failure to state a claim.

15) On July 13, 2004, Petitioner’s attorney filed a timely notice of appeal contesting the validity of the district court’s findings. A copy of the appeal is attached as Exhibit F.

16) On November 23, 2004, the United States Court of Appeals for the Second Circuit entered an order affirming the district court decision. A copy of the opinion is attached as Exhibit G.

17) On December 13, 2004, Petitioner submitted a formal complaint of misconduct to the Judicial Council of the Second Circuit regarding the actions of Judge George Daniels. Please refer to the New York Times article “Judges Decisions Draw Notice, For Being Conspicuously Late”, Dec 6, 2004. A copy of the article is attached as Exhibit H.

It is crystal clear, after mandates from New York State Supreme Court and the United States Southern District Court to seek review by the New York State Public Health Council; my complaints were thoroughly investigated in July 2000. Consequently, my allegations were fully credited and during September 2000 the council established that the New York Presbyterian Hospital and Drs. Dolphin and Coleman on two points:

(1) "Committed an improper practice by terminating Dr. Hall's clinical privileges" and (2) "the council determined the Hospital's actions was not based on principles of patient care, patient welfare, practitioner character or competence, and/or the objectives of the institution." (PHC letter dated September 22, 2000)

After receiving this patent victory against the Hospital, the case was reintroduced into the federal court system, again under the auspices of Judge Jed Rakoff. Abruptly, Judge Rakoff then recused himself without explanation after my attorney again raised the issue of a conflict of interest between his senior position with Cornell School of Law and my previous employer, Cornell Medical University, who was named a defendant in my case. Judge Rakoff unprecedented and aberrant behavior was raised with complaint of misconduct on July 4, 2001 with the Judicial Council of the Second Circuit (Docket No. 01-8568).

Shortly thereafter, Judge George Daniels was appointed to my case. After satisfying Judge Jed Rakoff’s request to seek review before the New York State Public Health Council, and receiving a Title VII right-to-sue letter from the Equal Employment and Opportunity Commission, my case was placed in a state of limbo. After almost three years of inaction and stating at oral argument that he would resolve a 12(b)(6) Motion “quickly” the case continue to face total inaction. In fact, my attorney was hamstrung by the Judge Daniels and forced to write “pleas” for discussion with Judge George Daniels and place phone calls that were causally dismissed, ignored and never returned. To our dismay, the District Court eventually required a writ of mandamus to finally issue any statement at all. It is important to note after the writ was filed, within a period of two weeks, Judge Daniels threw out my long-standing claims after years of delay, inaction and abandonment. The case was never allowed to proceed to discovery.

It is obvious that my civil rights claims contained within, Hall v. The New York Presbyterian Hospital, et al., (Southern District Court Index No. 00 CIV. 7858), were treated by the District Court with an absence of ordinary care.

I base this information on several facts and have enclosed documents to support my allegations.

1) Approximately one year ago, the Southern District Court (Honorable Judge George Daniels) granted defendants' motion to dismiss the case against The New York Presbyterian Hospital and Drs. Coleman and Dolphin. In an order dated December 5, 2003, the District Court held that my pleadings were legally deficient, "nowhere in his complaint…does Dr. Hall claim that he…specifically complained of disparate treatment provided to blacks as compared to white, or that the issue of race was ever discussed in connection with is patient’s care or his complaints about their treatment.” Moreover, the District Court held that the complaint made “no factual allegations that the white senior physicians were actually made aware that the patient in question was black, that senior physicians who failed to assist Dr. Hall were aware that the patient in question was black, that a departure from the standard of care occurred because the patient was black.” This issue is critical as we had submitted and affidavit attesting to this fact, yet Judge Daniels disallowed this evidence form becoming part of the legal record.

It is my claim that the District Court failed to appreciate a significant lower court ruling, primarily the New York State Public Health Council crediting my complaint against the New York Presbyterian Hospital in September 2000. It is my belief that this vital information was improperly disregarded by the District Court thwarting my claims. The substance of the complaint, in which I brought against the New York Presbyterian Hospital-Cornell Medical University, regarded the hospital terminating my professional privileges under the 2801-b provision of New York State Public Health Law. It is the New York State Public Health Council’s opinion the hospital, ophthalmology department chairman and program director acted improperly. Specifically stated in my complaint I referenced an African-American immigrant who was not treated timely or compassionately by white staff members after a severe penetrating eye injury, “it is my belief that the hospital internationally disregarded the patient (sic) civil rights and federal rights for treatment in a level one trauma center due to his ethnicity and immigration status.” Additionally, I went on to describe that an African-American child with a severe penetrating eye injury was not seen or examined at all, by any member of registered hospital attending staff after five separate white surgeons were notified personally by me while on call as chief resident. All white surgeons asked pointed questions about the child’s ethnicity and when identified as black were adverse to attend to his emergent medical care, “the incident that transpired in August involving a African-American child transferred explicitly to the hospital from another (local) hospital was entirely racially motivated and reflects an arrogance and superiority I have never witnessed before.” (See the New York State Public Health Council complaint)

Moreover, stated bolding in my the New York State Public Health Council complaint and made exhibit one of my federal complaint, I proclaim “the hospital parties were also well aware of several complaints….in writing and verbally…to hospital superiors…complaints were based on several episodes of medical negligence and racial discrimination.” (See the New York State Public Health Council complaint). Contrary to the defendant’s claims, I immediately made Drs. Coleman and Dolphin aware of my concerns of disparate medical care against black patients by white hospital staff. This is unequivocally supported by the New York State Public Health Council investigation and extensive review of all the evidence. As well, the crediting of the allegations as fact completely contradict the District Court’s affirming the defendants’ outlandish assertions that the claims are “after-the-fact” and are based on “a second bite at the apple” legal theory.

2) Additionally, the District Court denied my motion to amend my complaint by implying it held no new relevant information. In the alternative, I argued that the District Court should have granted me this relevant affidavit, amending my complaint, so that I could have pleased the court with specified details that the court requested, including the substance of the New York State Public Health Council ruling, [which incidentally was already cited in the pending federal complaint] and demanded highly germane by the previous District Court Judge Jed Rakoff in accordance to New York State Health Law. (Southern District Court Index No.99 CIV. 10554)

In that regard, it is unclear from the District Court’s dismissal what additional information would please the court, as it would seem that the court has on one hand demanded [per District Court Judge Jed Rakoff] the New York State Public Health Council judgement, deemed vital to pursue federal action, and on the other, ignored the New York State Public Health Council findings altogether. Based on my first federal ruling, (Southern District Court Index No. 99 CIV. 10554), a nexus was formed and clearly stated my federal claims are not separate and distinct from the New York State Public Health Council’s expert judgement and the affirmation of these allegations, as they are intertwined, provide undeniable, definitive and incorruptible support to my sentinel allegations against the defendants.

Once again, incredulously, at oral argument counsel represented that I had furnished all links to disparate care and the mistreatment of black patient by defendants through my detailed and fully accepted New York State Public Health Council review finalized in September 2000. I had met the legal threshold of both 42 U.S.C. § 1981 and Title VII, 42 U.S.C. § 2000e by advocating for a racial minority and then later being discriminated against by my employer for doing so through termination and defamation. Emphatically, this is based on the verbal and written statements attesting to the surgical and medical mistreatment and racial discrimination by the defendants as it related to black patients I was caring for as a federal funded proxy of the defendants.

Clearly, I witnessed and purported black patients with critical eye injuries did indeed suffer and receive disparate care by agents of The New York Presbyterian Hospital. I vociferously expressed these concerns through an internal memo providing them to my immediate superiors and was later fired for doing so. As my claims were presented before the court, they have been boxed neatly by the New York State Public Health Council and avoid any notion of presumption or confusion.

To reiterate, as I have read my claims presented by my attorney, it is ludicrous to determine that I have failed to allege “that he was fired by the hospital because he was advocating the 1981 rights of member of a racial minority,” as per Honorable Judge George Daniels. Plainly stated, the District Court argued this point was never alleged or supported in my federal claim. This is absolutely wrong, as it formed the basis of my New York Hospital Public Health Council complaint and this action was entered into my federal complaint in October 2000 as well as a Title VII right-to-sue letter from the Equal Employment and Opportunity Commission a letter provided to the court on April 6, 2001. What exactly does a right to sue letter imply if the District Court can ignore it and is not held accountable to the federal agency that provided it? Again, it is impossible to understand why this claim was not acknowledged or understood, as it was highlighted and on the first page of my federal complaint.

3) District Court Judge George Daniels, as a lifetime member of the federal judiciary and representative of the United States of America legal system, was issued a Writ of Mandamus regarding a unreasonable time delay regarding a 12(b)(6) Motion sought by the defendants. The writ was issued because of a perceived lack of professionalism and ethics, as he was contacted by my attorney via phone and writing multiple times without response over a period of years and failing to render a decision over two and half years. Realizing that the case was in a state of limbo, on June 2, 2003 we wrote the Chief Judge of the Southern District of New York requesting that the case be transferred to another District Court Judge in light of the District Court’s failure to render a decision on a 12(b)(6) Motion for almost three years. This letter was never answered. Only after being issued a Writ of Mandamus on November 18, 2003, the District Court ruled on December 5th, 2003, fifteen days after receiving the summons. It appears that after a period of many years, the Honorable Judge George Daniels was exceptionally willing to work toward resolving the case and dismissing it without delay. The space of time required for him to make this profoundly swift decision raises the question of his motives and raises the question that he breached his professional and ethical judicial duties.

Furthermore, I allege the District Court acted unjustly and prejudicially by the sweeping dismissal of claims, 42 U.S.C. § 1981 and Title VII, 42 U.S.C. § 2000e, [provided by a right-to-sue letter from the New York office of the Equal Employment and Opportunity Commission in January 2001] after the said court was again forced by legal threat to make a decision based on a higher court’s writ of mandamus submitted by my attorney Ambrose Wotorson. Soon after, the District Court ruled with unceremonious alacrity to discharge the claims while boldly demonstrating, through a short opinion, it had no reasonable comprehension of the case and supporting documents. The District Court failed to address serious claims with any modicum of logically bearing and has made irrational statements that indicate it clearly had no understanding of the claims and set out to nullify said claims and thereby actively obstructed my case and hindering due process.

The District Court affirmed the dismissal of all defendants and found with prejudice against Dr. Hall.

4) Recently, the Southern District Federal Court of Manhattan, New York, and its proxy, the Honorable Judge George Daniels has recently come under scrutiny in the press. It is obvious that the United States Southern District Court’s integrity is currently in peril and based on a front page article from The New York Times, dated December 6, 2004, the District Court’s Judge George Daniels has had a series of lapses in jurisprudence. Unparalleled in the history of the United States Southern District, this chaotic situation creates numerous fears, invokes unprecedented suspicions and opprobrium. Most concerning, Judge Daniels’ behavior gives the appearance and impression that the validity of his rulings are potentially flawed. According to The New York Times, the District Court’s Chief Judge, Michael B. Mukasey, Judge George Daniels’ behavior is not isolated and is was recognized as improper and ongoing, “Judge Michael B. Mukasey, chief judge of the Federal District Court, who has received repeated complaints about the delays, said that he thought Judge Daniels had been tackling his backlog, and that the year-old statistics did not offer the clearest picture. ‘Judge Daniels and I have spoken about this," he said, …"As an institutional matter," Judge Mukasey added, "obviously inordinate delay is always a concern."

There are serious questions raised by these statements. Are we to assume that any clearer picture exists? What does ‘institutional matter’ legally define; does it apply only to the bench or also the public? Who exactly is in charge? Why is behavior condoned and this allowed to happen? Can a judge be above the law?

In conclusion, I respectfully ask the Judicial Council of the Second Circuit to initiate and complete a professional review of the Honorable Judge George B. Daniels’ court procedures and a full and unfettered evaluation of his ruling regarding Hall v. The New York Presbyterian Hospital, et al. As you may be aware, I have recently submitted a formal complaint of misconduct against the Honorable Judge George B. Daniels to the Clerk of Court of the Second Circuit Appeals Court, but was required to formally resubmit the matter.

These statements are true under penalty of perjury.

Yours faithfully,

Michael James Hall, MD, MSc

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